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11 Jun 2008 : Column 392

Mark Durkan: Many hon. Members have made the point that a number of the protections offered alongside the extended power of detention do not add up to very much. That is true—they add up to less than the sum of their supposed parts. This chicane of hollow protections brings a new dimension to the notion of chicanery.

In relation to the Secretary of State’s power to activate the extended detention provisions and the question of independent legal advice, proposed subsection (1) of new clause 32 would require the Home Secretary to get legal advice only “as to whether” she “can properly be satisfied”. It does not provide that she should be properly satisfied, referring only to “whether” she is. The Home Secretary is not obliged to follow that legal advice. Proposed subsection (6) sets out the duty to publish the full legal advice, but subsection (7) completely ousts that duty if the Secretary of State believes that such publication would not be in “the public interest”. If the independent legal adviser does not agree to the edited version that the Secretary of State wants, none of the advice has to be published. So much for that protection.

What of this House acting in the role of a grand jury? It will do so in circumstances that will at least be triggered by a specific case, although the effects of the extension will not then be case-specific, as they might affect everyone already detained and anyone subsequently detained within that period. That is what the House will be doing. We could be brought back during a recess—the Bill provides for a recall of Parliament—yet people are saying that we should deal with these matters only in a calm and reasonable atmosphere, not in reaction to the heat of situations. This could even happen during an election campaign. We saw bombs in Madrid during an election campaign and people know about the political fallout there; they know that there were doubts about how the Government handled, played with and interpreted that situation at the time, and the issues ricocheted through the body politic.

We should think about the situation here if we vote for this Bill and the new clauses. We could be creating a situation in a which a terrorist group can deliberately contrive that its plot comes to the proper notice of the police and security services during an election. Hon. Members will be called to this place; some will have seen constituents arrested, and there will be others whose constituents could be affected by the new powers that had been triggered. Their communities will say, “What are you doing for us? We are told that there is significant parliamentary scrutiny and we have been put into the hands of MPs. You stand up and fight for us, and assert our rights.” If they do not do that, what will happen? That could happen close to an election or during one—and do we not expect it to ricochet in a dangerous way through the electoral politics of different constituencies?

Different MPs could be caught. An MP in one constituency might say to his constituents, “Sorry, I am a Government MP and I have to go by what the Home Secretary says. I have every sympathy with you, but there is nothing I can do or say.” Another MP might say, “Well, I opposed that legislation and I will fight it now that it has been activated.” In what position does that leave individual MPs? It leaves them in a completely invidious situation that no legislator, no public representative and no candidate should ever be in. Yet if we allow this Bill to go through, we will be inviting that sort of
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dangerous scenario, because the measures provide for the recall of Parliament during an election campaign.

There is another respect in which the protection is hollow. We are told that the courts will be involved, and some hon. Members have assured us that there will be adversarial proceedings in the courts. Yes, there will be adversarial representatives, but there will not be any evidence. What is proposed is pre-charge detention before evidence is presented. The courts have never refused an extension of detention so far; never ever have they done so, and how, essentially, could they?

This chicane of hollow protections adds up to very little. The protections are not only dubious, but dangerous. The thrust of these Government provisions is dangerous. They create a situation that will lead to the exercise of undue powers in unseemly and improperly controlled ways.

On detention for up to 42 days, we have seen in the past how people have confessed to all sorts of things that they did not do even with seven-day detention. We should think of the Guilford Four and then the Maguires, who were brought in on the basis of what members of the Guildford Four had said. They were not even brought in to be questioned originally and they did not confess. What others were forced to say about them led to their being brought in.

5.30 pm

In the case of 42-day detention, will not people not only be in danger of saying all sorts of things about themselves to line themselves up for charging, but be in a position to say all sorts of things about others, in a context where this power will be used in all sorts of other ways? This power will end up, in practice, taking on all sorts of gross and ugly proportions that its supporters underestimate. They seem to think that it will be used in very limited ways, that it has only a limited trigger and that it has only limited application. That is not what the Bill says.

We will see communities being fundamentally alienated from the state. We have had chief constables quoted at us the last couple of days. Let us just think what good community constables will say when this power is activated and a portcullis comes down between them and the communities that they have been working with, building contact and confidence. They will find themselves compromised and ashamed simply because, as police officers, they are arms of the state that has behaved in this gross way, leaving people not only resenting what has happened to some, but fearing what will happen to others.

We have seen how counter-terrorism powers have been counter-productive in the past. That is the experience of Northern Ireland. It is not just internment; it is the litany of counter-terrorism measures that created that culture of alienation, the propaganda weapons and real new and additional victims.

I warn the Government and those who would support them in the madness that is in this Bill: do not feed what you want to fight and do not destroy what this House ought to defend.

Mr. David Heath (Somerton and Frome) (LD): I return to something that was said a long time ago by the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd):
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the Minister for Security, Counter-Terrorism, Crime and Policing did a good job in Committee—I served on it—in trying to bring the various parties together on the vast majority of the Bill.

There is a great deal of consensus in the House on how we fight terrorism. Sometimes when we have this highly charged debate, we forget that. Is there a threat from terrorism? Yes, of course there is. I was on Capitol hill in Washington DC on 9/11. I was in Aldgate on 7/7. I do not need persuading that there is a threat from terrorists. [Interruption.] I tell hon. Members on the other side of the House that I understand their concerns.

However, is there a need for further powers to fight terrorism effectively? Yes, there is. We have agreed the things that need to be done—the lower-order offences, the offence of acts preparatory to terrorism, the lowering of the threshold for prosecution, the post-charge questioning that forms part of the Bill and intercept evidence, which the Chilcot review is, I hope, providing is admissible evidence—and the legislation to require the provision of a key to encrypted material ought to be the answer to the question of how we deal with encrypted material within the period required.

Is there an increase in the number of complex cases? I am persuaded that yes, there is. My answer to that is something that was decried earlier: we must provide more resources. I know that more resources have already been applied to the problem, but if there is a need for more interpreters, let us pay for more interpreters, pay for more police officers and have sufficient resources to do the job quickly. However, when I come to the question of whether there is a case for this extension to six weeks’ detention without a charge being placed, I do not agree and there is no consensus because it is unjustified, unfair, unworkable and profoundly unhelpful to our fight against terrorism.

I heard the Home Secretary ask earlier, “How would we feel if somebody was released after 28 days and they then committed an offence on the 29th, 30th or 31st day?” I ask how she would feel if, under her proposals, that happened on the 43rd, 44th or 45th day. There will be no limit to this auction of time for detention without charge if that argument is sustained.

I do not want to go into the issues of comparability with other jurisdictions—it is difficult to compare even common law jurisdictions, let alone those that operate on the continental pattern—but it worries me not that we are so far out of kilter with other common law jurisdictions, although we are, but that we are so far out of kilter with our history, our traditions as a country and how we maintain British justice.

I see no justification for what the Home Secretary has presented as a safeguard—the interpolation of Parliament into a judicial process. It is a most extraordinary proposition that this House should be empanelled as a sort of grand jury. Some say that it will not be dealing with the specifics of a case, but it will, because of the way in which the new clauses and amendments are worded. They require evidence to be put before the Secretary of State in relation to the progress of a specific case, and they require her to present it to the House in as far as she can.

The proposition is extraordinary because it defies jurisprudence, constitutionality and any concept of the illusory separation of powers, which we could debate at
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length. The House would be required to adjudicate on whether the Home Secretary was right in her assertion, but to do so either on the basis of evidence that would render the security services inoperable in the future or, more probably, without that evidence—perhaps on the basis of a dossier, and we all know what happens when the House decides matters on the basis of a dossier. We would thus be doing nothing more than rubber-stamp, or decide whether we liked the sound of the Home Secretary on the day when she presented the evidence to the House.

At one point, the Home Secretary said “Trust me.” I am sure we are often happy to trust her, but that is no basis on which to change essential liberties in this country, and essential elements of our criminal justice system. I want us to have consensus on the fight against terrorism, and I think we established a sort of consensus on 28 days, although it was not my choice; I saw it very much as a temporary expedient to avoid the adoption of 90 days. It worries me that all the noddy heads that supported 90 days are the same noddy heads that now support 42 days. There is a strong contention to be made that those noddy heads would support any number put before them by the Home Secretary.

Let me say to the Government that it is not too late, even now, to avoid the defeat that is inevitable—if not here tonight, as I hope, at the other end of the corridor later—and to reach the proper consensus that the country needs in order to fight terrorism effectively.

Frank Cook: I apologise for my late arrival. I did not arrive until after the opening speeches had begun, because I had to deliver a keynote address in Paris to a seminar on Afghanistan run by the Carnegie Endowment for International Peace.

I remind the House that in 2005 I escaped having to make a decision on the 90-day limit because I was Chairman of the Committee considering the Bill in question, and found no cause to exercise my mind strenuously in that direction. I remember distinctly saying to my hon. Friend the Member for Walsall, North (Mr. Winnick) “David, why do you go winnicking on about 28 days?” He thought it rather unkind at the time, but I think he has since found the courage to accept my feeble attempt at humour.

It gives me no joy or satisfaction to oppose this proposal, but it seems crazy to me. When the 42-day limit was first proposed, I thought “We agreed to 28 days when they wanted 90 days. Why, when they want to extend the limit again, do they not ask for 90 days again?” That led me to examine the proposal more carefully, and to understand the logic behind much of the argument that we have heard today.

I do not want to go into the niceties of the legal terminology. That was done brilliantly by my hon. Friend the Member for Hendon (Mr. Dismore). He referred not only to some of the legal mistakes, but to a range of options that have apparently been rejected—which is a great shame, because if we were serious about these proposals, they could have provided us with a solution.

Apart from the standard briefings from the agencies professionally engaged in these considerations, I have received only one representation from a constituent
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who supports the 42-day proposal. All the other constituents who have got in touch have opposed the measure, but today I received a text on my mobile. I cannot switch it on, Mr. Deputy Speaker, as you well know, but I can reveal the contents of the message. My constituent has asked me not to oppose the Government because of the danger that doing so would pose to the three marginals in Teesside.

Phil Wilson (Sedgefield) (Lab): Will my hon. Friend give way?

Frank Cook: I will give way when I have finished my point, which is not humorous. Marginals should not enter this debate, as we are not here to talk about the political advantages or disadvantages of the proposal. This is a matter of principle.

Phil Wilson: I thank my hon. Friend for giving way. My constituency of Sedgefield is adjacent to his constituency of Stockton, North, and our constituents are very similar to each other. I have undertaken a survey over the past few days, in which I asked about 3,000 of my constituents about the principle involved in this matter. Some 80 per cent. of respondents have told me that they support the Government. Has he done anything similar? How does he know that he is speaking on his constituents’ behalf?

Frank Cook: In one way that is a fair question, but it is totally unfair in another way. Any survey is based on a question that can be formulated in all sorts of ways to favour one answer over another. I can tell my hon. Friend that I have not conducted a survey, but I am telling the House about the nature of the e-mails and letters that I have received. There has been only one exception to the trend, and I have reported that as well.

We are talking about the reaction among constituents, and I had better clear up a misunderstanding caused by one of my earlier interventions. I have frequently referred to the reservoir of resentment that will likely be created by the adoption of the proposed measures. Indeed, that reservoir of resentment has been created already, as is shown by the increasing incidence of suspect plots that has been described already. My fear is that extending detention without trial even further will cause that reservoir of resentment to increase in size. The impact will be felt as a result of what we do tonight, not before.

I turn now to some of the pressures that have been brought to bear on me in the past week. The suggestion has come from certain quarters that I have adopted the approach that I have set out because I want to take “revenge” for my “treatment”—both words are precise quotations—since 1997. Anyone who thinks that must have a mind so small as to be barely visible with a microscope.

It has also been suggested that I wish to bring down the Government. However, I have been deselected already, so for me to try to bring the Government down now would mean that I was trying to declare myself redundant two years ahead of time. The pressure that has been applied to me shows the desperation that the Government have been feeling, but I see that the Whips are smiling and so I assume that the pressure that they have exerted in other quarters has been effective.


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The Jesuits taught me that there could be no compromise with error. I think what we are considering tonight could become an error. I entered the House 25 years ago this week, and at that time I decided to reject the use of the word “right”, because of its connotations with the phrase “right wing”. I did not want to be referred to as right wing when I was correct, so I rejected that word in favour of the term “proper”. I shall, however, have to break that resolution this evening, because we are talking about rights; we are talking about the right of the individual—of a man or a woman, old or young, black or white—to be innocent until proven guilty. When we make our decision tonight, we must let right be done.

5.45 pm

Mr. Cash: In a nutshell, the problem is as follows. The proposals before us contain a procedure for Parliament to be involved in the process, which is extraordinary, because ultimately, what we are debating is the question of habeas corpus. That is why I tabled new clause 39. I am deeply concerned that although in any particular case a suspect has to be produced before a judge within 48 hours, under the arrangements of the Bill the whole process of habeas corpus will be severely restricted. It may not be a total suspension—great mistakes were made in the 19th century in respect of the coercion Act and the suspension of habeas corpus—but we must ensure that we achieve what my new clause proposes, which is that nothing in this Bill shall prevent or restrict a person detained

and that there

that justice,

if the provision specifying that extended period is passed—

Furthermore, if the justice is not satisfied with the inquiries made,

I am not deeply concerned about the number of days; I do not think that that is the crucial question. What is fundamental is the relationship between the person being detained and the procedure of habeas corpus in respect of the judge. That key issue has not been properly discussed. We have witnessed what has effectively been a game of political football over this question. It is far too important for that. It is absolutely crucial that we maintain habeas corpus.

I know that other Members wish to speak and that the Home Secretary will need to make some final remarks, so I shall conclude by simply saying that the most important writ available to the English courts is habeas corpus. It has been clearly stated that


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